Mississippi codified the death penalty because people thought it was fair. Mississippians thought a death sentence was a fair punishment for the most heinous of crimes. And, as predicted by behavioral economics, people were willing to sacrifice their own material well-being – willing to pay – to punish wrongdoers.

But the death penalty is not fair. While it may or may not be just for the inmates, it’s not fair for the financial toll it takes on citizens and counties.

This paper discusses research completed in 2012 as part of a Master of Criminology and Corrections degree through the University of Tasmania into measures of success in drug court participation. Visits were made to nine drug courts and various associated programs internationally and interviews were conducted with a wide range of stakeholders. Data from interviews with 16 current participants in the Tasmanian Court Mandated Diversion program provided first-hand information about the benefits of program participation, and a form designed to collect this information is included. The emphasis of the paper is on capturing the impact of drug court participation and how success can be measured, evaluated and demonstrated. Cost savings are considered with a view to securing the ongoing financial viability of such programs as they are demonstrated to represent good use of public money. Practical recommendations from my observations of 16 drug courts worldwide are made for consideration by the local drug court program.

This short essay introduces the Michigan Journal of Race & Law Journal’s symposium, Inhumane and Ineffective: Solitary Confinement in Michigan and Beyond. I look at the extremely limited available demographic information about prisoners in solitary confinement, and present preliminary data that supports a working hypothesis of racialized skew in isolated confinement, compared to the already highly skewed demographics of general prison population. In four of eight datapoints (representing prisons in Arkansas, Colorado, Connecticut, and New York), non-white prisoners are substantially overrepresented in supermax facilities; statistical testing confirms that the difference is statistically significant. (In three of the other four — Massachusetts, New Jersey, Rhode Island — the small overrepresentation is not statistically significant; likewise, the tiny proportion of underrepresentation in Maryland lacks statistical significance.) The essay concludes with the customary call for further research.

Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted Rebalancing the Fourth Amendment (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

Fourth Amendment decisions primarily rely on balancing tests. None of these tests account for the fundamental flaw that skews the balance in these cases. The Fourth Amendment aims to protect the privacy of all individuals against government intrusion but is always presented to courts by a criminal defendant whose hands are dirty. Thus, when a court considers a balance of privacy interests against a government’s interest in effective law enforcement, the government wins almost every time. Without mitigation of the central weakness in Fourth Amendment balancing — that a criminal defendant is protecting the rights of all of society — these constitutional inquiries fail to protect broader privacy rights and equal protection interests implicated by the Fourth Amendment.

The study's authors said keeping data anonymous is not necessarily enough to ensure real privacy.

"A simply anonymized dataset does not contain name, home address, phone number or other obvious identifier," they wrote. "Yet, if individual's patterns are unique enough, outside information can be used to link the data back to an individual."

So, for example, say that you wake up at home every morning, head to the office five days a week, then hit the gym on three of those days. That's three data points already. Then maybe you go to the same church, or restaurant for brunch, every Sunday. There's the fourth -- plenty to figure out who you are, the authors say.

Some opponents of the cameras have called them a warrantless attempt to raise revenue for the city and have expressed doubts as to whether they reduce speeding.

Mr. Golden said on Wednesday that other areas with speed cameras around the country had found them “unreliable.”

Janette Sadik-Khan, the city’s transportation commissioner, said on Wednesday that over 100 cities and states were already using cameras “and study after study has proved that they work.” The Transportation Department cited the example of Washington, D.C., where the police said last year that speeding at camera locations had fallen significantly since 2001, when the devices were first installed.

Tung Yin (Lewis & Clark Law School) has posted The Death Penalty Spectacle (University of Denver Criminal Law Review, Vol. 3, Spring 2013) on SSRN. Here is the abstract:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject).

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.”

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel, and can help reduce crime.

In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v.Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that “defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.” This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.

Orin Kerr has this thoughtful post, noting Justice Scalia's shift from referring to "trespass" in Jones to different formulations in Jardines. In part:

One way to square them is that perhaps the Jones test is not about the technicalities of trespass doctrine but rather about physical intrusion into property. Under this reading, theJones inquiry protects private property from physical intrusion. What counts as a “physical intrusion”? Most cases will be easy — just watch the officer or tools he is using as they cross into the constitutionally protected area of the house, paper, person, or effect. The facts ofJones then become the closer case, with a “physical mount[ing]” of the government’s device to the car deemed a sufficient interference with the property interest to “intrude” onto the effect of the car. The issue isn’t the technicalities of trespass law, but rather the presence of physical intrusion into property owned by the person — specifically, their houses, persons, papers, and effects.

One officer described how car thieves might pretend to be beggars, sifting through curbside trash. “If someone is in the middle of a dark street, staring into the car and then when we drive by, they start ripping up garbage bags,” the police officer, Michael Noboa, said, “that would give me reasonable suspicion to conduct a stop, question” and possibly frisk.

Another officer in the same Brooklyn precinct, Kha Dang, explained how gang members often stash a gun nearby when they congregate outdoors. So he might grow suspicious, he explained, if he observed people repeatedly glancing over at a trash can or “at the bushes, you know, no person would sit there and keep looking at the bushes like that.”

. . .

Officer Gonzalez said he might grow suspicious if someone were waiting at a bus stop and “every possible bus that they could possibly get on has come through and went, and this person is still there.”

Officer Dang said that men “randomly looking in apartment windows” had led to a number of stops.

The Article seeks to explicate the purposes behind criminal statutes of limitations, especially in regard to serious crimes. It examines the coherency and persuasiveness of possible rationales for such statutes, focusing on personality change by the perpetrator as a possible explanation or justification for barring prosecution after the lapse of substantial time following the commission of a crime. The Article concludes that the passage of time by itself does not carry enough moral weight to overcome countervailing considerations.

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general. Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.

Michael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Terrorists and Outlaws (Preventing Danger: New Paradigms in Criminal Justice, eds. Caianiello and Corrado (Carolina Academic Press, 2013)) on SSRN. Here is the abstract:

In this paper I continue the discussion, begun in my “Sex Offenders, Unlawful Combatants, and Preventive Detention,” of the indefinite detention of suspected terrorists. I examine recent developments in legislation and executive action concerning suspected terrorists, and in particular the National Defense Authorization Act of 2012.

Much has been written about the rule that prevents the use of evidence obtained in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure. The quantity of the literature, however, threatens to obscure important areas of emerging agreement. This paper, part of a symposium in the Ohio State Journal of Criminal Law to appear for the 100th anniversary of Weeks v. United States, presents seven theses.

Justice Thomas wrote the opinion for the unanimous Court in Millbrook v. United States, determining that the waiver for intentional torts by an "investigative or law enforcement officer" extends to torts by such officers within the scope of their employment even if it does not arise in the course of executing a search, seizing evidence, or making an arrest.

Richard A. Leo (University of San Francisco - School of Law) has posted Why Interrogation Contamination Occurs (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The problem of police interrogation contamination (disclosing or leaking of non-public facts) is pervasive in documented false confessions leading to wrongful conviction. The presence of unique and detailed crime facts in a false confession creates the illusion that the defendant volunteered inside information about the crime that “only the true perpetrator could have known,” thus seemingly corroborating a false confession as verifiably true. This article argues that confession contamination occurs because (1) the guilt-presumptive psychology of American police interrogation is designed to trigger and perpetuate confirmation biases that (2) lead investigators - seemingly inadvertently - to provide detailed case information to suspects as part of their pre- and post-admission accusatory interrogation strategies, but (3) has no internal corrective mechanism to catch or reverse investigators’ misclassification errors or their confirmatory interrogation techniques.

This chapter presents findings from a large-scale empirical test of procedural justice theory, which we (and colleagues) designed using the fifth European Social Survey. The chapter first of all locates concerns about institutional legitimacy within a broader framework of ‘compliance theories.’ It then sets out its definitional stall in an attempt to clarify what is meant by the ‘slippery’ concept of legitimacy and how the term is used in different contexts. Then, in testing various hypotheses on procedural justice, we employ a tripartite definition of empirical (i.e. perceived) legitimacy. We define empirical legitimacy as the recognition and justification of the right to exercise power and influence, with influence mostly of the normative (rather than instrumental) variety, and importantly our tripartite notions of consent, moral alignment and legality accord with some well-established social psychological mechanisms of identification and internalisation.